People v. Bailhache

Sec. 4106 of the Political Code is unconstitutional. The order should have been published by order of the Board. The authority of the Board is measured by the statute alone, and it prescribes the mode in which the power is to be exercised. {Fox v. Board of Supervisors, 49 Cal. 565; Cowell v. Martin, 43 Cal. R. 605.) Jo Hamilton, Attorney-General, and L. B. Mizner, for the People. No separate order directing the publication of the “ ordinance ” was necessary. The fact that it was published presumes that it was done according to law, and by direction of the Board. (People v. Board of Supervisors of S. F., 27 Cal. 656.) By the Court : Many objections are taken to the attempted consolidation of the office of County Auditor with that of County Recorder, but it will not be necessary to notice more than one of them—the one in relation to the publication of the ordinance. It is provided by sec. 4106 of the Political Code that the Boards of Supervisors of counties of the second class may consolidate the offices of Recorder and Auditor and certain other offices “ by an ordinance ' adopted, recorded, and published at least three months prior to a general election at which county officers are to be elected and the next section (sec. 4107) provides that “ when there is an omission by the Board of Supervisors to consolidate, and to advertise the consolidation of offices, as in the preceding section authorized, each office, not so consolidated must be filled by an [312] election.” It is manifest, from these sections of the Code, that the offices are to be consolidated by the Boards of Supervisors; that the consolidation does not become effectual by the mere adoption and recording of the ordinance; that the publication of the ordinance is also essential; and that it is as much the duty of the Board to publish the ordinance — that is to.say, to cause it to be published—as it is to adopt it. The Board must order the publication, otherwise there is, in the language of sec. 4107, “ an omission by the Board of Supervisors * * * to advertise the consolidation of offices.” A publication without such order is unauthorized, and of no effect. It does not appear that the Board ordered a publication of the ordinance in question in this case, and therefore the defendant’s objection must prevail. Judgment and order reversed, and cause remanded for a new trial.